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February 19, 2009
What state’s constitution provides the most liberal abortion rights in America: California? Massachusetts? The answer will surprise you.
In pondering this question, Tennesseans in the buckle of the Bible Belt might naturally think of states like California and Massachusetts as liberal states that would constitutionally protect abortion. And those states are more liberal on many issues compared to Tennessee. But on the issue of constitutional protection for abortion, no state’s constitution is more liberal in granting abortion rights than Tennessee’s. That’s right: Tennessee.
Tennessee is one of only 16 states in the nation in which abortion is a state constitutional right. No, Tennesseans did not vote to put that right into their state constitution. As in the other 15 states, the state constitutional right to abortion was the result of a state Supreme Court decision. Back in 2000, four “Justices” (not acting very “justly” from the viewpoint of the aborted child) found a fundamental right to abortion in our state constitution.
Of course, you didn’t hear about it much. It didn’t make the front page headlines. No, because the four media savvy justices in the majority released their decision late on a Friday afternoon, the Friday before a big home UT football game against Florida. Even had a newspaper been able to change the Saturday edition, who would have noticed on that Saturday. Of course, most newspapers are a long way to having their weekend stories lined up by late Friday. By Monday, the court’s decision was going to be old news in most news rooms, taking a back seat to the “current” news. With decisions and tactics like that, no wonder justices on the state Supreme Court do not like contested elections.
But, you may ask, “Why does simply having a right to abortion in our state constitution mean no state’s constitution in the country is more liberal and protective of abortion than ours?” That is a great question.
The reason is because our state Supreme Court applied the highest level of judicial scrutiny (review) to abortion legislation that any court, state or federal, has ever devised for any issue. The threshold for getting the judiciary’s approval of any abortion legislation in Tennessee is higher than even that required under the U.S. Constitution.
So, what does that “judicial threshold” mean in layman’s terms? It means that laws regulating abortion in Tennessee that would be constitutionally permissible under the U.S. Constitution may not be constitutional in Tennessee. For example, Tennessee’s Attorney General has officially declared that a state ban on partial-birth abortion using the same language as the federal ban (a ban the U.S. Supreme Court said was constitutional), would be “constitutionally suspect” under Tennessee’s constitution. Can you believe it? A ban on the gruesome act of partial-birth abortion may not even be constitutional after what our state Supreme Court did to our state constitution.
What that means is that if Roe v. Wade was reversed tomorrow, it would not make one bit of difference in Tennessee. Abortion, even partial-birth abortion, would still be a constitutional right in Tennessee—under our state constitution.
This session, the legislature will have a chance to take the first step toward putting on the ballot an amendment to the state constitution that would reverse the judicial fiat of our state Supreme Court and once again make our state constitution neutral on the issue of abortion as it was prior to the decision in 2000.
After failing in a state House subcommittee for seven years, it is time that our legislators let us decide whether our state’s constitution should “take sides” on the issue of abortion.
Everything you need to know about this issue can be found at www.LifePetition.org.
Stay tuned.
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Tennessee: An Abortion-Friendly State
